TMI Blog2018 (7) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... e driver of the said vehicle itself with simultaneous corroboration from the statement of the worker of appellant namely Mr.Jagat Singh that Mr. Subash Yadav was the driver of the said vehicle who used to deliver goods from appellant’s factory at the instance of the appellant. The said vehicle was seized from the factory of the appellant loaded with material but with no bill for the same. There is a clear admission for the alleged clandestine removal by the appellant, who could not produce any evidence on record to prove his innocence. Oral grounds of defence could not be corroborated by any documentary evidence - Since the clandestine removal of metal wires stands established on record and there can be no other objective for the same except, the evasion of duty, the penalty as imposed is also not found to have any infirmity. Appeal dismissed - decided against appellant. - Excise Appeal No. E/50172/2016 EX [DB] - A/52272/2018-EX[DB] - Dated:- 20-6-2018 - MR. V. PADMANABHAN, MEMBER (TECHNICAL) And MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Mr. V.K. Gupta, Advocate Present for the Respondent: Mr. R.K. Mishra, D.R. ORDER PER: RACHNA G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eight of these ingots is 120-150 Kgs. and what appellant was manufacturing was of 80-90 Kgs. It is further impressed upon that irrespective of 31 documents including pen-drive, laptop etc. were resumed from the residence and the factory of the appellant but these documents speak about such articles which were meant for trading only, thereby inviting no excise liability. The said fact stand corroborated from the fact that the house raided was jointly shared by the father and the brother of the appellant, who were into trading of these copper ingots. There is no reasonable evidence on record, which may distinguish their trading activity from the manufacturing activity of Mr. Alok Aggarwal, Proprietor M/s. Yash Industries. The only other document relied upon by the Department is the document recovered from the cabin of a vehicle, which was found parted in the factory of the appellant at the time of impugned raid. It is impressed upon that these documents again pertaining to a third party cannot be sufficient to bring home the alleged guilt of the appellant as has been confirmed by the order under challenge. Order is alleged to have lack of appreciations. Appeal is accordingly, prayed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial as well as factory premises of the appellant were searched on 15 th June, 2012. in furtherance of some documents about Ms. Yash Industries to have been clandestinely removing raw-material to M/s.Hind Material were recovered from premises of M/s. Hind Metals Industries. Two Panchnamas about resuming certain records/documents and resuming material/documents in consequence to search at residence and factory of the appellant were respectively prepared on 15.06.2012 itself. In addition, documents were also resumed from the cabin of Tata 407 No. DL/LE 3390 which was found parked in the factory premises of the appellant, at that time. On the same day the statement of the Proprietor of the appellant Mr. Alok Aggarwal was recorded. He gave a statement in his own handwriting acknowledging that he has business transactions with M/s. Hind Metals Proprietor thereof is Mr. Rajesh Gupta. He acknowledged that goods seized from his factory were being cleared by him without bill and without payment of Central Excise duties. He also acknowledged his business relations with M/s.Balaji Metals M/s. Mahalakshmi Traders. He also confirmed that many of the documents as resumed are in his own handwri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Mr. Yadav clearly stated that all these docuemtns have details of the raw-materials, as well as finished goods in the form of copper ingots (weighing 80-90 Kg.) to have been delivered to and fro the factory/furnace of M/s. Yash Industries at the instance of Mr. Alok and that the name of Mr. Alok is mentioned against the entries related to him in his record (the record recovered from the cabin of Tata 407) with the details of the other party having transaction with Mr. Alok. M/s. Hind Metal alongwith M/s. Balaji are admitted to be one among others 9. Statement of Mr. Jagat Singh, a worker in appellants factory, was also recorded on 15 th June, 2012. The correctness thereof has also clearly been admitted by the Proprietor of the appellant, as far as the quantity of ingots prepared during the relevant period was concerned and as far as the acknowledgement about clearance thereof without any discharge of liability is concerned. Said Mr. Jagat Singh has also acknowledged about involvement of Mr. Subash Yadav, the Tempo Driver for transporting the goods in and out of the appellant premises. 10. Further, in the statement dated 27 th November, 2012 though Mr. Alok Aggarwal has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Hon ble Apex Court that there is no prohibition under the Evidence Act to rely upon retracted confession to prove prosecution case or to make the same basis for conviction of the accused Tribunal, Delhi in the case of CCE, Chandigarh vs. Nabha Steels Ltd. - 2004 (169) ELT 345 has held that the principles relating to inadmissibility of confession under Criminal Procedure Cord are not applicable to the confession made under Section 108 of the Customs act. Tribunal Bombay in the case of Commissioner vs. Shamshuddin M.A. Khadar 2010 (259) ELT 44 has held that the retraction made after delay of one and half month was an after thought and the statement of material piece of evidence. 12. In similar circumstances, statements were retracted in a case 2011 (270) E.L.T. 643 (S.C.) Commissioner of C. Ex Mumbai v. Kalvent Foods India Pvt. Ltd. where in Supreme Court held that where statements were given by own volition and there is no allegation of threat, force, coercion, duress or pressure being utilised by the officers, these statements will be considered made of their own volition. These findings are further supplemented with the facts that amount of ₹ 9,00,000/- (Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant to rebut the said discrepancy rather he admitted the same. 15. Thus, we are of the firm opinion that the order under challenge has been passed after due appreciation of the evidence on record. This Tribunal in another case of Commissioner of Central Excise vs. Praveen Kumar Co. 2015 (328) ELT 320 held that once the Proprietor of the firm admits vide his statements about the documents recovered contained the details of clearances without discharge of Central Excise duty and that the same has supported by the documentary evidence in the form of the documents recovered, retraction, if any, has no meaning. It was further clarified that once evasion is admitted, it cannot be contented that there was no investigation relating to procurement of raw-material and manufacture of huge quantity of final goods and transportation thereof. It was also held that once the fraudulent intend to evade is manifest and later confession proving such evasion by other activities Department is not required to prove its case with mathematical precision, what is required is establishment of such a degree of probability that a prudent man may on its basis believe in existence of fact ..... 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